[2016] KEELC 376 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since 8th March, 2013, and had not provided any explanation for the delay. The court emphasized that it is the plaintiff's duty to prosecute the case expeditiously and that the defendant is entitled to seek dismissal for want of...
Source-derived case information.
- Citation
- [2016] KEELC 376 (KLR)
- Parties
- Plaintiff: Kwanza Estates Ltd; Defendant: Kenya Wildlife Services
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 133 of 2012
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Interlocutory Injunctions, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kwanza Estates Ltd
Plaintiff
Kenya Wildlife Services
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether the plaintiff has failed in their duty to prosecute the case expeditiously.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since 8th March, 2013, and had not provided any explanation for the delay. The court emphasized that it is the plaintiff's duty to prosecute the case expeditiously and that the defendant is entitled to seek dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. The absence of any action by the plaintiff for over three years justified the dismissal of the suit. The court allowed the defendant's application for dismissal as prayed.
Court Disposition
suit dismissed for want of prosecution
Orders
- The defendant's application dated 12th July 2016 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.133 OF 2012
KWANZA ESTATES LTD........................................................PLAINTIFF
=VERSUS=
KENYA WILDLIFE SERVICES...........................................DEFENDANT
R U L I N G
1. In her Application dated 12th July, 2016, the Defendant is seeking for the dismissal of this suit for want of prosecution.
2. The Application is premised on the grounds that on 8th March, 2013, this court allowed the Plaintiff's Application dated 14th August, 2012; that as a result the Plaintiff is enjoying interim orders of injunction and that the Plaintiff is not interested in pursing this matter.
3. Although the Defendant's advocate was served with the Application, he neither filed Grounds of Opposition nor a Replying Affidavit. However, the Plaintiff was represented by his advocate when the Application proceeded for hearing on 6th October, 2016.
4. The Defendant's counsel submitted that the Plaintiff has never set down the matter for hearing since 8th March, 2013; that it is the duty of the Plaintiff to prosecute his case expeditiously and that the existence of the suit is prejudicial to the Defendant.
5. The Defendant's counsel submitted that the Defendant ought to have taken steps in fixing the matter for hearing; that no pre-trial directions have been taken in this matter and that the Defendant cannot jump a procedure provided for in the Civil Procedure Rules and move the court for the dismissal of the suit.
6. The Plaintiff has not denied that he has never set down the matter for pre-trial directions or hearing since 8th March, 2013 when the court delivered its Ruling in respect to an Application for injunctive orders.
7. By the time the Defendant filed this Application, three years had lapsed since the matter was last in court.
8. As was held in the case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 699, it is always the duty of the Plaintiff to bring his suit to an early trial, and he cannot absolve himself of this primary duty by saying that the Defendant consented to the position.
9. Order 17 Rule 2 of the Civil Procedure Rules provides that in any suit in which no application has been made or step taken by either party for one year, the court may on its own motion, upon giving notice to the parties, dismiss the suit. Any party to the suit may also apply for its dismissal. That is what the Applicant has done.
10. In view of the fact that the Plaintiff has never taken any step to prosecute this suit since 8th March, 2013 and considering that the Plaintiff or his advocate has not filed any Replying Affidavit to explain the delay in prosecuting this suit, I allow the Defendant's Application dated 12th July 2016 as prayed.
Dated, signed and delivered in Malindi this 4th day of November, 2016.
O. A. Angote
Judge